Information pertaining to a complaint filed by a tax defaulter with CBI - CIC: Appellant was arrested following the due process of law as enumerated under the CBI Crime Manual; There is no question of human rights violation while arresting the appellant
1. Shri Suresh Sivanandan filed an application dated 26.05.2014 under the Right to Information Act, 2005 (RTI Act) with the Central Public Information Officer (CPIO), Central Bureau of Investigation (CBI) seeking information on four points pertaining to a false and motivated complaint dated 15.12.2013 filed by a tax defaulter including
(i) copies of permissions given by Joint Director, CBI for registering a case against him on 15.12.2013 and for arresting him on 17.12.2013
(ii) copy of permission given by Joint Director, CBI for making house searches and
(iii) copy of the notification from Central Government issued under Section 5 of DSPE Act, 1946 with the consent of Government of Orissa, Kerala and Delhi for investigation/searches conducted by the CBI in these States.
2. The appellant filed second appeal before the Commission on 31.10.2014 on the ground that the CPIO has not provided the information.
Hearing on 21.01.2016:
3. The complainant Shri Suresh Sivanandan attended the hearing through video conferencing. The respondent Shri Rajiv Ranjan, CPIO and SP, CBI was present in person.
4. The respondent requested the Commission to grant him some more time to make submission in the matter.
5. The Commission considered the request of the Commission and decided to adjourn the matter to 22.02.2016 at 1:00pm.
Hearing on 22.02.2016:
6. The appellant Shri Suresh Sivanandan was present in person. The respondent Shri Pandey, Additional SP and Shri S.N. Rath, Inspector, CBI attended the hearing through video conferencing.
7. The appellant submitted that the Joint Director/ Head of Zone, CBI (Kolkata Zone) is the information holder as sought in his RTI application dated 12.05.2014. But the RTI application was wrongly transferred to the CPIO, CBI Bhubaneswar on the ground that they do not have a CPIO which is against the provision of the RTI Act.
8. The appellant submitted that Shri R K Shukla is a tax defaulter and possesses unaccounted income of crores of rupees which was detected by his team. Accordingly, every possible action has been initiated under IT Act against Shri R K Shukla and his wife to recover the income tax dues. In order to allow payment of tax, Shri R K Shukla in connivance with the officials of CBI filed a complaint against him and Shri Narayana Nayak, Income Tax Officer (ITO). There was a criminal conspiracy between the CBI officials and Shri R K Shukla. The CBI arrested the appellant and kept him for 12 days in judicial custody. The appellant alleged that a FIR cannot be lodged against senior officers of the rank of Joint Commissioner, Income Tax without the authorization/permission of the competent authority i.e. Joint Director /Spl.DIG Kolkatta Zone as prescribed in Chapter 6, 10, 12 and 13 of the CBI (Crime) Manual, 2005. The appellant had been put under suspension and lost his dignity. Therefore, his basic human rights had been violated by the CBI in connivance with Shri R K Shukla. The information sought by him in the RTI application is pertaining to his case where issues of corruption and human rights violation were involved. Further, the appellant submitted that he was not sent up for trial as the competent authority did not accord sanction of prosecution against him. Accordingly, charge sheet was filed only against Shri Narayana Nayak, ITO, Ward No. –I Dhenkanal before the Hon’ble Court u/s 7 and 13(1)(d) of the Prevention of Corruption Act (PC Act), 1988 with a prayer for taking cognizance of the offences mentioned above and to take further necessary legal action.
9. The respondent submitted that it is an agreed fact that Shri R K Shukla is a tax defaulter and possesses unaccounted income of crores of rupees which was detected by the team of Shri Suresh Sivanandan, Joint Commissioner, Income Tax. However, to close the proceedings or to let Shri Shukla escape the prosecution and avoid payment of the tax amount, the appellant Shri Suresh Sivanandan demanded illegal gratification, through Shri Narayan Nayak, ITO, from Shri R K Shukla for an amount of Rs. 10 lakhs which was to be paid in two installment. Rs. 5 lakhs were recovered from the custody of Shri Narayan Nayak, ITO in cash and not accompanied by any challan. There is no provision under the Income Tax Act to receive tax amount in cash from the tax payer. Shri Suresh Sivanandan enquired from Shri R K Shukla on the way to office whether the transaction of Rs. 5 lakhs has been received or not which was heard by the trap team through loud speaker of the mobile phone. The involvement of Shri Suresh Sivanandan in taking the illegal gratification is well corroborated from the chain of events that has emerged during the investigation. There was a criminal conspiracy between Shri Narayan Nayak and Shri Suresh Sivanandan to commit the above mentioned criminal offence. Further, as per Crime Manual, 2005 of CBI, Chapter 10, para 10.6, it is mentioned that if a case is required to be registered under the Prevention of Corruption Act, (PC Act) 1988 against an officer of the rank of Joint Secretary and above or a Government appointee in the Central Public Sector Undertaking, prior permission of the Government should be taken before the enquiry/investigation as required under Section 6A of the Delhi Special Police Establishment (DPSE) Act except the case under Section 7 of the PC Act, wherein the registration is followed by immediate arrest of the accused. Therefore, the provisions of CBI (Crime) Manual was duly followed. Hence, no corruption and human rights violation was involved in the present case and CBI being one of the exempted organization under Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act is not obliged to provide the information as sought by the appellant.
10. The Commission observes that the allegation of corruption made by the appellant is based on the CCTV footage of 09.12.2013 in which Shri Shukla is seen carrying a black bag escorting Shri S.N. Rath while entering the Income Tax office. However, Shri Anuj Kumar one of the member of the trap team moved out from the IT office with the same bag, this does not suffice to form prima case of corruption by the CBI officials/ trap team.
11. Further, the appellant Shri Suresh Sivanandan was arrested following the due process of law as enumerated under the CBI Crime Manual, 2005. Therefore, there is no question of human rights violation while arresting the appellant. The Commission, thus, observes that allegations of corruption and human rights violation does not mean mere conjectures rather the allegation ought to be supported by cogent evidence which can lead the Commission to form a prima facie view about the involvement of CBI officials in corruption. Such an element is clearly missing in the present matter as no evidence or material has been placed on record by the appellant before the Commission so as to establish prima facie case of corruption/human rights violation by the CBI officials.
12. In view of the above, Commission concludes that since the CBI has been put at SI. No. 23 of Second Schedule to the Right of Information Act, 2005, the Commission cannot bind such an organization (Central Bureau of Investigation) exempted under Section 24 read with Second Schedule of the RTI Act, to disclose information unless it is proved that the matter involves allegations of corruption and human rights violation. Hence, the information sought cannot be provided.
13. With the above observation, the appeal is disposed of.
14. Copy of decision be given free of cost to the parties.
Citation: Shri Suresh Sivanandan v. Central Bureau of Investigation in Decision No. CIC/VS/A/2014/002005/SB Decision No. CIC/VS/A/2014/002006/SB